Criminal Writ Petition No.45 of 2002

3rd July, 2003

Petitioner Counsel: Shri. R. R. SHRIVASTAVA
Respondent Counsel: Shri. MIRZA, Shri. ANIL S. MARDIKAR, S. S. JOSHI, Shri. ANIL S. MARDIKAR

Cases Cited:
Bhagwant Singh Vs. Commissioner of Police, (1985)2 SCC 537 [Para 2,5]
Union Public Service Commission Vs. S. Papaiah, (1997)7 SCC 614 [Para 2,5]
Kishore Kumar Gyanchandani Vs. G. D. Mehrotra, AIR 2002 SC 483 [Para 3]

JUDGMENT

R. K. BATTA, J.:-

Criminal Application No.1683/2003

Application allowed. Filing of affidavit dispensed with.

Criminal Application No.1683/2003 [For Early Hearing]

Heard learned advocate for the petitioners. He states that the petitioner is restricting the relief in the petition for the present only in relation to the prayer relating to quashing of the final report and for direction to the Magistrate to hear the petitioner/complainant before taking any final decision on the final report. He does not press the other prayers at this stage and seeks liberty to file proceedings in case necessary at later stage. In view of this, application for early hearing is granted restricted to the prayers made above and liberty which is sought is granted. The application for early hearing is accordingly allowed.

FINAL ORDER :

Though in this petition several reliefs have been sought, but the petition is restricted for the present to the prayers in relation to accepting of the final report and for directions to pass appropriate orders after hearing the petitioners.

2. Heard learned advocates for the parties. The position in our view is crystal clear on this aspect in view of the rulings of the Apex Court in Bhagwant Singh Vs. Commissioner of Police [(1985)2 SCC 537] and Union Public Service Commission Vs. S. Papaiah and others [(1997)7 SCC 614]. In Bhagwant Singh Vs. Commissioner of Police (supra) the Apex Court has laid down that in a case where the Magistrate to whom a report is forwarded under sub-section (2) of Section 173 decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It is further observed by the Apex Court that the injured person or any relative of the deceased who is not an informant, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report and the Magistrate is bound to hear him. The Apex Court in Union Public Service Commission Vs. S. Papaiah and others (supra) after relying upon the judgment in Bhagwant Singh Vs. Commissioner of Police (supra) found that no notice was issued by the Magistrate to the appellant therein before accepting the final report submitted by C.B.I. and decided not to take cognizance and drop the proceedings. The Apex Court has further observed that this omission vitiates the order of the court accepting the final report, since issuance of notice by Magistrate to the informant at the time of consideration of the final report is a must.

3. The learned advocate for the respondent nos.3 to 7 has relied upon Kishore Kumar Gyanchandani Vs. G. D. Mehrotra [AIR 2002 Supreme Court 483] and has submitted before us that in fact the petitioners were fully aware of the fact that the learned Additional Sessions Judge vide order dated 30-7-2001 had set aside the order of discharge passed by the Magistrate on 21-11-2000 under section 169 of Cr.P.C. and the Magistrate was directed to consider the said report under section 169 of Cr.P.C. He therefore, contends that the petitioners could have appeared before the Magistrate or could have filed protest petition and in these circumstances the writ petition should not be entertained. It is also brought to our notice that the petitioner had filed certain documents in the said revision wherein the said order was passed.

4. We may first point out that the appeal was admitted after hearing the learned advocate for respondent nos.4 to 7 and it appears that no such objection, as is now raised at the final stage, was raised at the time of admission, though this was taken in pleadings. Therefore, it is not possible to entertain the preliminary objection now raised before this Court at this stage. Besides this, even according to the advocate for the petitioner nos.4 to 7 the petitioners can file the protest petition so that they may be heard by the Magistrate. Instead of that the petitioner has filed the writ petition here and it is not necessary at this stage to direct the petitioners to file a separate petition before the Magistrate. Admittedly, in this case the petitioner was not heard on the final report after the Sessions Judge had passed order setting aside the discharge under section 169 of Cr.P.C.

5. In the light of the Apex Court Judgment in Union Public Service Commission Vs. S. Papaiah and others (supra) and Bhagwant Singh Vs. Commissioner of Police (supra) we hereby quash the acceptance of the final report by the Magistrate and direct him to hear the petitioner/complainant and other necessary parties including the prosecution and the respondents and pass appropriate orders within a period of 3 months from 1-8-2003. The order be expeditiously sent to the Magistrate at Murtizapur. All the parties who are represented by advocates in this petition are directed to appear before the Judicial Magistrate, First Class, Murtizapur on 1-8-2003. There will be no need to issue any separate notice to the parties who are represented through counsel in this petition.

Petition allowed.